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Sanjay Agarwal vs State Of Rajasthan on 9 April, 2019 cites

Shiv Lal Solanki And 6 Ors. vs The Jalore Central Co-Operative Bank ... on 19 August, 1985

In support of the contention, learned counsel relied upon a decision of this court in the matter of "Shiv Lal vs. The Jalore Central Cooperative Bank Ltd., Jalore & Anr." (D.B.Special Appeal No.303/85 and connected matters, decided on 8.9.1987). Learned counsel urged that the State, a party to the contract, does not permit the matter to be proceeded with and then makes the provision for forfeiture on non fulfillment of the conditions specified within the stipulated time and thus, apparently, the provision incorporated is penal in nature but it does not provide (Downloaded on 27/06/2019 at 10:50:01 PM) (47 of 66) [CW-2996/2018 for any opportunity of hearing to the persons affected and therefore, it being manifestly arbitrary and unreasonable, deserves to be struck down.
Rajasthan High Court - Jaipur Cites 12 - Cited by 55 - Full Document

The Labour Contract, Co-Operative ... vs Director Of Mines & Geology, Hyderabad ... on 22 September, 1992

565] and "The Labour Contract, Cooperative Society, Palikur Vs. Director of Mines and Geology, Hyderabad and Ors", [(1993) Suppl. (2) SCC 316]. According to the learned counsel, the incorporation of the provision, which is penal in nature is beyond the powers of the rule making authority of the State Government under the provisions of Section 15 of the Act of 1957. Learned counsel submitted that the latest study is requested by MoEF and CEC only in October, 2016, which would take almost one year inasmuch as, the study requires collection of ground data for pre and post monsoon and thus, it was practically impossible for the petitioners to obtain the EC after completion of the process by the Government of India within a period of one year from the commencement of the Rules of 2017 i.e. upto 28.2.2018. Learned counsel submitted that as a matter of fact, Rule 5(4) is clearly repugnant to Rule 5(2) read with Rule 16(2) of the Rules of 2017. Drawing the attention of the court to Rule 5(2), learned counsel submitted that it mandates disposal of the applications in respect whereof the LoI has been issued after determining premium through tender or auction under the Rules of 1986 shall be considered as received under the Rules of 2017 and shall be disposed of by the Competent Authority as per the provisions of sub-rule (2), (3) & (4) of Rule 16. As per Rule 16(2) (iii), the time prescribed to obtain all consents and approvals as may be (Downloaded on 27/06/2019 at 10:50:01 PM) (48 of 66) [CW-2996/2018 required under the applicable laws is 18 months from the date of issuance of the LoI, which by virtue of first proviso to Rule 16(2) is extendable by the Competent Authority subject to payment of late fee at the rate of ten percent of annual dead rent for delay of every month or part thereof for such extended period not exceeding three years from the date of issuance of the LoI, however, by virtue of second proviso to Rule 16(2), it may be further extended for a period of one year by the Government subject to payment of late fee as specified above. But in cases where LoI was issued before the commencement of the Rules of 2017, under third proviso no such time limit regarding extension has been prescribed rather, it is provided that in respect of such LoI, the period may be extended by the Competent Authority subject to payment of late fee at the rate of ten percent of the annual dead rent for delay of every month or part thereof for such extended period from the date of issuance of the LoI and thus, apparently, the provisions of sub-rule (4) of Rule 5 of the Rules run contrary to third proviso to Rule 16(2) of the Rules and renders it nugatory and therefore, the same deserve to be declared ultra vires for this reason alone. Learned counsel submitted that as per sub-rule (2) of Rule 5, where the LoI is issued after determining premium through tender or auction under the Rules of 1986, the application is required to be considered and disposed of as per provisions of sub-rule (2), (3) and (4) of Rule 16 and sub-rule (4) of Rule 16 mandates that the applicant or successful bidder, as the case may be, who did not apply with the condition of the LoI within the stipulated or extended period of time, the Competent Authority shall reject the bid and forfeit the (Downloaded on 27/06/2019 at 10:50:01 PM) (49 of 66) [CW-2996/2018 application fee, premium amount and performance security deposit after providing an opportunity of being heard by issuing notice of thirty days whereas, as per sub-rule (4) of Rule 5, on failure to fulfill the condition of LoI within a period of one year from the date of commencement of the Rules of 2017, the right of such applicant or successful bidder shall stand forfeited and in case it would not be mandatory for the Government to issue any order in this regard. Learned counsel submitted that the opportunity of hearing and passing of an appropriate order is not contemplated under sub-rule (4) of Rule 5 and the applicant's/successful bidder's right shall stand forfeited by operation of law and thus, qua the LoI holders under the Rules of 1986, the provisions of sub-rule (4) of Rule 16, which is though made applicable by sub-rule (2) of Rule 5, cannot be made operative. Similarly, as per sub-rule (3) of Rule 5 of the Rules of 2017, where it appears that the application is not complete in all material particulars or is not accompanied by required documents, the competent authority shall reject the application and forfeit the application fees, premium amount and performance security deposited after providing an opportunity of being heard by issuing notice of thirty days. Thus, according to the learned counsel, the provisions of Rule 5(4), which forfeits the right of the applicant for non-fulfillment of condition of LoI within the stipulated period of one year from the date of commencement of the Rules without giving an opportunity of hearing to the affected LoI holders runs contrary to Rule 5(3) and Rule 16(4) of the Rules of 2017 and renders the same redundant. Learned counsel submitted that an action of the authority having evil and civil consequences must be (Downloaded on 27/06/2019 at 10:50:01 PM) (50 of 66) [CW-2996/2018 preceded by an opportunity of hearing and therefore, forfeiture of the rights of the LoI holders by operation of the Rule 5(4) without giving an opportunity of hearing to them is per se illegal, arbitrary, unreasonable and unjustified, which cannot be countenanced by this Court.
Supreme Court of India Cites 1 - Cited by 57 - B P Reddy - Full Document
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